Smith v. BNSF Ry. Co.

• Court: U.S. District Court — District of Colorado
• Writing for the Court: Magistrate Judge Kathleen M. Tafoya
• Decision Date: 18 July 2019
• Docket Number: Civil Action No. 17-cv-00977-KMT
• Citation: Smith v. BNSF Ry. Co., Civil Action No. 17-cv-00977-KMT (D. Colo. Jul 18, 2019)
• Parties: ANTHONY J. SMITH, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

ANTHONY J. SMITH, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

Civil Action No. 17-cv-00977-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

July 18, 2019

Magistrate Judge Kathleen M. Tafoya

ORDER

This matter is before the court on "BNSF Railway Company's Motion for Summary Judgment on Plaintiff's FELA and FRSA Claims" ("Mot.") [Doc. No. 48] filed November 16, 2018. "Plaintiff's Response in Opposition to BNSF Railway Company's Motion for Summary Judgment on Plaintiff's FELA and FRSA Claims" ("Resp.") [Doc. No. 56] was filed December 11, 2018. "BNSF Railway Company's Reply in Support of its Motion for Summary Judgment on Plaintiff's FELA and FRSA Claims" ("Reply") [Doc. No. 59] was filed on December 26, 2018. This motion is now ripe for ruling by the court.¹

Unless otherwise referenced, the following summary is taken from the parties' undisputed facts ("UF") contained in BNSF's motion, which were not disputed in the Response by Plaintiff.

Plaintiff Smith began working for BNSF in November 2014 as a Carman, a job that entails working on rail cars needing repairs, as well as inspecting rail cars, connecting air hoses, and releasing hand brakes. (UF #1.) The Carman position entailed specialized safety training (UF # 2, 4) and working as an apprentice under more experienced Carman employees (UF# 3).

On or about May 23, 2015, Plaintiff worked for BNSF at the yard and was releasing rail car hand brakes with Greg Rogers, Morris Bell and George Keithline. (UF #39.) Plaintiff made no report of injury for any activities he undertook on that day. (UF # 17.) Between May and July 22, 2015, Plaintiff did not miss work because of any injury sustained on his job as Carman. (Id.) Plaintiff Smith denies that he was injured prior to the July 22, 2015 injury described infra.

On June 26, 2015, Plaintiff began seeing a chiropractor, Dr. Stephen Kutscher, complaining that he had been feeling pain and tingling from his right shoulder to his fingers since June 1, 2015, and reported his symptom level as being near the top of "extreme symptoms." (Mot., Ex. H [Doc. No. 48-8].) On the body diagram Plaintiff completed at intake, Plaintiff said he was feeling "pins & needels (sic)" from his thumb to the top of his neck and used the pain assessments for Ache, Burning, Numbness and Pins and Needles as descriptive of his symptoms. (Id.) He claimed that any movement or pressure aggravated the problem and that he was prevented from doing or enjoying "Everything sleep." (Id.) Between June 26, 2015 and July 21, 2015, Plaintiff was treated by Dr. Kutscher more than once.

On July 22, 2015, Plaintiff, working with more senior employees Carman Aranda and Carman Acosta at the rip track (not at the yard) (see UF#56), was using a sledge hammer to attempt to remove² a cushioning unit from a rail car. (UF #21, 23-25.) Plaintiff was not swinging the sledge hammer in a traditional movement, but rather was using it "in a plunger effect to tap the cushioning unit" (UF #25) and "not holding any weight of the sledgehammer" (UF #24). During the last hour of his shift, while still engaging with the sledge hammer and the cushioning unit, Plaintiff testified that he felt a "zinger" or "Charlie horse" shoot up his right arm. (Resp. Ex. 1 at 34 [Doc. No. 56-1] ("Pl. Dep."), deposition page 130.) The trio were unable to release the cushioning unit during the course of their shift that day and left the project to be worked on by others. (UF #35.) No report of injury was made that day.

Although the date Plaintiff claims he first reported an injury to BNSF arising out of his activities on July 22, 2015 is disputed - it appears the date was either July 24 or July 25, 2015 - it is undisputed that on July 27, 2015, Smith submitted an injury report that his supervisor helped him complete³ and noted the date of injury as July 22, 2015. (UF ## 37, 39; [Doc. No. 48-16].) In describing his injuries, Plaintiff stated in the report, "sever (sic) pain from right shoulder blade to finger tips, numbness, pins & needles sensation." [Doc. No. 48-16.] Plaintiff also stated, "was noticing irritation on east and trainyard tying hand brakes, final realization was at rip track using sledge hammer on track 123 working on [unreadable] gear." (Id.) Plaintiff reported that fellow employees Greg Rogers, Morris Bell, and George Keithline were witnesses to his injury;Plaintiff did not report that Mr. Aranda or Mr. Acosta were witnesses. (Id.; UF #39.) As noted, Mr. Rogers, Mr. Bell and Mr. Keithline were employees who worked with Plaintiff on or about May 23, 2015, when Plaintiff was releasing hand brakes on rail cars at the yard but who were not working with him on July 22, 2105. (UF #39.)

On July 23, 2019, before any injury report was made to any person in authority at BNSF, Plaintiff went to see Dr. Brad Reedy, D.O., at Front Range Family Medicine. [Doc. No. 48-17.] According to Dr. Reedy's intake notes, Plaintiff reported neck pain, upper back pain and shoulder pain, which Plaintiff said had been ongoing for 8-9 weeks and had been worsening for the previous two weeks. Plaintiff claimed that the pain was "[w]orse after swinging sledge hammer at work." (Id. at 1.)

Plaintiff has been diagnosed via an MRI taken August 12, 2015, with

1. Mild degenerative changes of the C6-7 disc space with a posterior right paracentral disc protrusion/herniation causing lateral recess effacement and proximal C7 nerve root compression. 2. Minimal degenerative changes of the C7-T1 disc space with a small posterior central disc protrusion without evidence of nerve root impingement or cord compression. 3. Findings consistent with muscle spasm.

(Resp., Ex. 6 [Doc. No. 56-6] (MRI Radiological Report); see also Ex. 5 [Doc No. 56-5] (Operative Report).)

After conducting two disciplinary investigations concerning Plaintiff's Report of Injury, on September 2, 2015, BNSF terminated Plaintiff based on its finding of "dishonesty." (UF #50, 54.) Plaintiff also received a Level S record suspension on the basis that Plaintiff failed to file a FRSA report about a May 2015 injury. (Id.)

Plaintiff claims that he was fired because he filed an injury report, a FRSA protected activity and that not only was he not dishonest, the dishonesty allegation is a pretext for the realreason he was fired - for engaging in protected activity. Further, Plaintiff claims that BNSF provided an unsafe work environment which led to his injury on July 22, 2015. Defendant moves for judgment as a matter of law on both claims.

LEGAL STANDARD

Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to theparty opposing summary judgment. Concrete Works, 36 F.3d at 1517. When ruling on a motion for summary judgment, courts should recall that "[c]redibility determinations [and] the weight of the evidence" are the province of the jury. Fresquez v. BNSF Railway Co., No. 17-cv-00844-WYD-SKC, 2018 WL 6249686, at *5 (D. Colo. Oct. 2, 2018) (citing Anderson, 477 U.S. at 255). Even so, at the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.

ANALYSIS

A. Federal Railroad Safety Act — Claim II

In 1980 Congress added an anti-retaliation provision to the Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq. ("FRSA"), prohibiting railroad carriers from discriminating against employees who reported safety violations or who refused to work under hazardous conditions. Federal Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811, 1815. FRSA provides that a railroad "may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done . . . to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee." 49 U.S.C. § 20109(a)(4).

To prevail on his FRSA...